Local Government

Summary

Ms C complained on behalf of the residents of a new housing development, which consisted of a number of buildings. Planning permission had been approved for the development on the basis that one parking space would be provided for each property. However, due to a mistake by the developer’s architect, there was a shortfall in the number of available spaces. The developer submitted a further application, changing the proposal for one of the buildings so that underground parking that was originally planned would not be provided. Ms C complained that the council approved the second planning application without considering the impact that this had on the overall parking provision for the development.

We found that it was appropriate for the second application to be considered separately and on its own merits. However, our planning adviser told us that the council should take into account the wider context of the application, including parking provision for the site as a whole. The council had said that they did not consider the parking problems on the wider site to be a material consideration when determining the second application. We were satisfied that there was clear evidence of the matter being investigated and considered fully.

Our investigation highlighted that the developer sold a number of properties to a housing association, and the proposed number of parking spaces for those properties reduced to 25 percent in line with the requirements for affordable housing. However, the properties were later to be sold as shared ownership flats, which require 100 percent parking. We noted that the council did not have a policy in place for shared ownership properties' parking at the time of sale. Once the matter was brought to their attention, however, they amended their policy and ensured that the developer would provide 100 percent parking.

Ms C also complained that the council were working with the developer to use existing landscaped space for parking. Residents found this inappropriate, as the landscaped areas were a requirement of the original planning consent and were already minimal. We found no direct evidence of the council encouraging the developer to make use of these areas or of working with the developer. However, it was clear that the council would consider any proposals put to them, including the use of landscaped areas. We did not consider this to be inappropriate, but we made a recommendation relating to the outcome of any decision.

Recommendations

We recommended that the council:

• upon determining the planning application, provide a full and detailed explanation to the residents' steering group of the reasons for their decision.

Summary

Mr C said that when he moved into his house, he was aware that affordable housing was being built on land behind it. He found out later that this was to be social housing. When building was completed, the council opened a link pathway between the two estates and Mr C said that since then he had been subject to antisocial behaviour from residents of the new estate. He considered that the path was the root of the problem, and asked the council to close it. His request was heard by the council’s leadership panel. It was initially intended that the item about his complaint should be held in private but, on the day, the panel took the decision to hold the meeting in public and he was not notified of this.

We did not uphold the complaint. We found that, in deciding to recommend that the item be held in private, council officers took the view that there was a risk of potential victimisation of Mr C and of others requesting the closure of the lane. We also found, however, that the relevant legislation provides for the holding of council meetings in public, except where the council decides to exclude the public when considering an item that is likely to disclose exempt information. Decisions about whether to consider an item in public or private take place at council meetings. We accepted the view of one of the panel members that the matter was of some local interest and that it would have been inappropriate to hold it in private as it had been discussed several times at tenants' and residents’ association meetings. We also accepted the council’s explanation of why it would have been remiss of them to have encouraged attendance at a meeting where the original decision for discussion in private had been taken to protect the residents making the complaint.

Summary

Mr C lives close to a church building which had fallen out of use. It had been the subject of unsuccessful planning applications for conversion and change of use to flats. In late 2009 a successful application was made to convert the building to a crematorium. Mr C and his wife did not live close enough to the building to be notified about this application. In the autumn of 2011, however, Mr C became aware of the provisions of the Cremation Act 1902 (the Act), which stipulate that no new crematorium should be built closer than 200 yards from the nearest house or 50 yards from a public road, without the permission of owners and occupiers. Mr C complained to the council, saying that they had failed to have proper regard for the Act in granting planning consent for the conversion and failed to protect Mr C's residential amenity; unreasonably delayed in dealing with his complaint, and unreasonably failed to answer his questions about their response to a Scottish Government consultation on the Act.

After seeking independent advice from our planning adviser, we found that the council, with qualification, were entitled to decide that the distance stipulations were not relevant to the granting of planning consent as they formed part of a different regulatory framework. There was also no evidence that the amenity of residents was disregarded when determining the application, and we did not uphold these complaints. We found that there had indeed been a delay in dealing with Mr C's complaint (but the council had apologised) and that they had neglected to answer his query about the council's consultation response. That issue was resolved by a senior officer explaining an apparent inconsistency. We, therefore, upheld both of those complaints, but made no recommendations.

Summary

Mr C complained that the council charged him a late renewal fee for his landlord registration, although he had not received email reminders that the council said were issued. The council confirmed that these were issued automatically by the Scottish Government’s online landlord registration system and that nothing had been received from Mr C’s email address saying that they were not delivered.

We were unable to prove or disprove whether the reminder emails were sent and received. However, when we investigated it was clear that it was Mr C’s responsibility to ensure that he renewed his registration in a timely manner. His previous registration in May 2008 was valid for three years. It was, therefore, due for renewal in May 2011. However, we found that he had not contacted the council for advice on the application process until March 2012. In the circumstances, we did not uphold the complaint.

Summary

Mrs C complained about the way the council dealt with a retrospective planning application for work that she had carried out in her garden. In particular, she was concerned that the council alleged that trees had been felled without authorisation, destabilising the bank. She was concerned that these comments had affected her planning application and raised public feeling against her application.

We found that the council had only noted one instance of unauthorised felling, the previous year, and had discussed this with Mrs C at the time, when she had agreed to replanting. We found that it was reasonable for them to mention this in the planning report and that information later passed to a councillor, which Mrs C had complained about, was also simply noting the landscape officer's observations. As we took the view that the council had reported the matter accurately, and as the landscape officer's observations were reasonable, we did not uphold her complaint.

Summary

Mr C had a blue badge for disability parking for a number of years but when he applied to the council in 2010 to renew it, his application was refused. Mr C said that this was despite his condition worsening. He re-applied in 2012, following surgery, and was granted a blue badge. He believed that the council did not handle his earlier application properly, and misinformed him when they said that it was successful in 2012 because of a change in legislation. Mr C also said that his GP did not have full information on which to make an assessment, and believed that there were flaws in the council's review process that resulted in his appeal being unreasonably declined.

We did not uphold Mr C's complaints. We found that changes in the regulations from 1 January 2012 did clarify the health grounds on which a local authority can exercise discretion to award a blue badge, where this is not automatically awarded (if an applicant is in receipt of certain benefits). There was no evidence to suggest fault in the way the council considered Mr C’s 2010 application. Mr C’s GP had the opportunity to comment on his application and the council’s records confirmed that it was assessed in accordance with their procedures. The information that Mr C’s GP had provided was not copied to him, but it is not the council's practice to do this, and Mr C had not asked for a copy.

Mr C had suggested that an appeal process should bring the parties together to discuss the application, and this would have identified that his GP’s records were not up-to-date. However, it was evident that the review of the decision to refuse Mr C’s application was conducted in accordance with the procedures in place at the time.

Summary

Mrs C complained about the council's failure to assert what she believed to be a public right of way. In addition, she raised concerns about the council’s failure to take enforcement action against a resident who used part of this area as a garden and had enclosed it, preventing access.

Our investigation looked at the council's responsibilities in terms of rights of way. We found that they carried out a substantial consultation exercise to determine whether or not the local residents were aware of a right of way at this location. They decided that they did not have sufficient evidence to establish whether or not a right of way existed and that they would, in all likelihood, be unable to defend such a decision in court.

The council also explained the process they followed when considering whether to take enforcement action. Having considered all relevant background information, and sought evidence, they were satisfied that they should not pursue enforcement action in relation to the change of use of the land or the enclosure of the ground.

Having considered the information provided by both parties, we were of the view that these were discretionary decisions - ie decisions that officers were entitled to take. We cannot look at such decisions if there is no evidence that something has gone wrong when taking them. As we did not find evidence of administrative failure, we did not uphold these complaints.

We did uphold a complaint about the way the council dealt with the complaints raised by Mrs C. As they had already apologised for the delay in responding to correspondence, however, we did not make any recommendations.

Summary

Mr C raised a complaint about the council's handling of a cement batching plant at a quarry. In particular, Mr C complained that the cement batching plant had changed from being an ancillary operation at the quarry to a mainstream operation and that the council had failed to require the operator of the quarry to obtain planning permission. Mr C also said that the council had failed to monitor lorry traffic to and from the quarry, and was unhappy with the council's handling of his representations.

During our investigation of the complaint the council explained that, having carried out inspections at the quarry, they were satisfied that the operation remained an ancillary operation. As we found no evidence that anything had gone wrong in reaching that decision, we could not challenge this and did not uphold the complaint. Similarly, the council explained that they were not required by any planning condition to monitor the movement of vehicles to and from the quarry.

On the matter of complaints handling, we were satisfied that the council responded to the issues raised, but found that they had failed to handle Mr C's complaint in line with their complaints procedure for which they had apologised. We, therefore, upheld this complaint, but made no recommendation.

Summary

Ms C complained about the council's actions in relation to blasting by the operators of a quarry in her area. She said that the council failed to ensure that a full and complete environmental impact assessment was carried out on the residential area beside the quarry, before they approved blasting at the quarry for 20 years. We did not find any deficiencies in the environmental assessment and the associated process. A specific assessment on the residential area was not required.

Ms C also said that the council failed to ensure that there were adequate planning conditions in relation to the blasting at the quarry. She complained that the council had unreasonably given the quarry operators permission to carry out test blasting at the quarry with inadequate safeguards for public safety and public amenity. The council had allowed the blasting under an earlier planning consent, as the more recent consent had not been implemented at that time. We found that the blasting operations were not excluded from the earlier consent. However, the council had an agreement with the quarry operators that the conditions in relation to blasting in the more recent planning application would apply. We considered that this was to be welcomed from a practical point of view, as it allowed a detailed monitoring scheme for the blasting to be drawn up.

We were also satisfied that the council had put reasonable safeguards in relation to the blasting in place. They had taken the relevant national planning advice into account and there was also a scheme for monitoring blasting vibration in place. We found that it was appropriate for a firm of environmental consultants to monitor the blasts. It was also common practice for the results of the monitoring to be kept at the site and made available for inspection by the planning authority at all reasonable times. In addition, there was a notification procedure in place to inform residents of the blasts. That said, we did comment to the council that they should consider occasionally monitoring the blasts themselves. We also found that the council had delayed in responding to complaints about the blasting and upheld Ms C's complaint about this delay.

Ms C made a further complaint that the council had obtained evidence that a condition regarding the quarry's hours of operation was being breached, but had failed to take enforcement action. The council said that it was their position that they had monitored the noise level at the quarry and no harm was being caused. They stated that the quarry operators had made an application to change the operating hours. They said that no enforcement action would, therefore, be considered until a decision was made on this application.

If a member of the public complains to us that there has been administrative fault or service failure by an authority in reaching a decision, and that he or she has suffered injustice or hardship because of this, we may look at the complaint. We can consider the process and procedures involved. We cannot, however, question the decision if there is no evidence of maladministration. We found that the council had followed the correct procedures in relation to this matter. We were also satisfied that it was appropriate for the council's enforcement officer to advise the quarry operators to make an application to vary the condition in relation to the operating hours.

However, at an early stage in our investigation, the council's chief executive had given assurances that the council would continue to monitor the operations at the quarry to ensure that there was no loading or unloading of lorries outwith the permitted hours. The council had failed to honour these assurances in view of their decision that no harm was being caused and enforcement action would not be taken.

Recommendations

We recommended that the council:

• write to the Ombudsman and Ms C to explain why they failed to honour the assurances given that they would continue to monitor the operations at the quarry to ensure that there was no loading or unloading of lorries outwith the permitted hours.

Summary

Mr C complained about information provided to him about planning permission in 2000 and 2007/8, lack of information sharing between the planning and building control departments, and the handling of his enquiries about these matters in 2010.

Our investigation, which included taking independent advice from a planning adviser, found that the information provided by the planning and building control departments had been accurate and complete and was not misleading. It had been made clear to Mr C and the architect who had acted as his agent that the grant of planning permission did not negate the need to apply for a building warrant and vice versa. We also found that the level of information sharing and co-operation between the two departments was similar to that in most if not all councils in Scotland. This also complied with the guidance offered by the Scottish Government via the Building Standards Division - Procedural Handbook. We did not uphold these complaints.

We did, however, uphold Mr C's complaint about delay. We found that there were delays in dealing with his queries when he came to sell his property in 2009-10. Mr C had to apply for a letter of comfort (a letter that confirms that any work done on a property without planning permission and/or a building warrant has been done to an acceptable standard). The council admitted that due to staffing difficulties in 2010 there were unacceptable delays in the processing and issuing such letters. They apologised to Mr C for this in their response to his complaint in January 2012, and took action to ensure that the situation was not repeated. They are also currently reviewing their systems in preparation for the implementation of the Building Standards Framework developed by the Scottish Government and due to be implemented in October 2012.

Recommendations

We recommended that the council:

• provide us with an update on the preparation for and implementation of the Building Standards Framework.